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1 WILKIE V. AUTO-OWNERS INSURANCE COMPANY AND THE DOCTRINE OF REASONABLE EXPECTATIONS IN MICHIGAN NO SPECIAL RULES FOR INSURANCE CONTRACTS by David E. Lacasse Submitted in partial fulfillment of the requirements of the King Scholar Program Michigan State University College of Law Under the direction of Professor Clark C. Johnson, J.D., Ph.D., L.L.D.

2 I. Introduction In the spring of 2003, as a first year student at Michigan State University College of Law, I had an assignment from my Research, Writing and Advocacy class to watch an appellate proceeding. I perused the Case Call for the Michigan Supreme Court and found that an insurance related case was to be before the Court on March 11. I have worked in the insurance industry both as a claims adjuster and an agent since 1989, so I felt I would more likely understand the issues in that case than in the other cases. The case was Wilkie v. Auto-Owners Insurance Company; Docket Having worked in the insurance industry, I was familiar with the terms adhesion contract and construing ambiguous terms against the drafter. However, much of the oral argument and questions from the bench focused on the doctrine of reasonable expectations. It was a concept I had never heard of before as I had yet to take a Contracts class. 2 Wilkie not only clarified Michigan s position on the doctrine of reasonable expectations, but also has formed a basis, through Rory v. Continental Ins. Co 3, to repudiate any special interpretive rules regarding insurance contracts. This paper will review the majority and dissenting opinions in Wilkie, review the positions for and against the doctrine, compare Michigan s stance to other jurisdictions, and propose that Rory is not the logical extension of Wilkie, but can be distinguished. A contrary holding in Rory can stand with the holding in Wilkie. II. Michigan Rejects the Doctrine of Reasonable Expectations Wilkie involved the limits of underinsured motorist coverage. Paul K. Wilkie and Janna L. Frank were involved in an automobile accident with Stephen Ward. Ward crossed the center 2

3 line of the road and collided with the vehicle driven by Frank in which Wilkie was a passenger. Wilkie, who was the owner of the vehicle, died from his injuries, and Frank was seriously injured. 4 Ward s vehicle was insured with an auto policy from Citizen s Insurance with a single liability limit of $50,000 for Liability Coverage. This single limit was shared between Wilkie s estate and Frank with each receiving $25, Wilkie s vehicle was insured by Auto-Owners and had Underinsured Motorist Coverage with limits of $100,000 per person and $300,000 per occurrence. 6 There was no debate that Ward caused the accident and that Wilkie s and Frank s claims satisfied the threshold requirement to receive compensatory damages under Michigan s No-Fault statute, 7 and that each of their claims exceeded $100,000. Auto-Owners contended that it owed Wilkie and Frank $50,000 each. As it understood the terms of the contract, the $100,000 per person limit was reduced by the amount of coverage that would be available to Ward on a per person basis, $50, Wilkie and Frank claimed that Auto-Owners owed each of them $75,000. They argued that the $100,000 should be reduced by the amount they actually received from Citizen s, $25, Wilkie and Frank sought declaratory relief and moved for summary disposition based on their understanding of the policy. The trial court granted their motion and ruled that Auto- Owners owed them $75,000 each. 10 Auto-Owners appealed and the Michigan Court of Appeals upheld the trial court s granting of Wilkie and Frank s motion. 11 The court held that the term available was ambiguous and, consistent with ambiguities being construed against the drafter of the contract, held for the plaintiffs. 12 3

4 The Court of Appeals, unnecessarily 13, stated that Auto-Owners interpretation of the contract also violated the rule of reasonable expectations, 14 which was [c]oncomitant with the rules of construction.... When determining the existence or extent of coverage under the rule of reasonable expectations, a court examines whether a policyholder, upon reading the contract, was led to reasonably expect coverage. 15 The court concluded that, [t]he reasonable expectation would be that the insured has contracted to have the amount of the policy limits available to him, whether paid by the underinsured motorist, or by the insured s policy. 16 The balance of the opinion is an ambiguity analysis and reference to the rule of reasonable expectations is limited to two paragraphs. 17 In overturning the Court of Appeals, the Michigan Supreme Court held that the policy language was not ambiguous. The Court stated that since the Underinsured Motorist Coverage limit was $100,000, and the total of all bodily injury policies available to Ward was $50,000, the policy clearly limited each plaintiff s recovery to $50, Any ambiguity that there may be in the term available in paragraph 4(a)(1) of the policy is settled when read with paragraphs 4(b)(2) and (3), which state that the amounts paid will not be increased because of the number of persons injured or claims brought. 19 Having found the policy language to be unambiguous, the Court dispensed with the doctrine of reasonable expectations in a lengthy analysis that started with its statement of fidelity to the freedom of contract. According to the Court, the doctrine is the antithesis of the notion of freedom of contract. This approach, where judges divine the parties reasonable expectations and then rewrite the contract accordingly, is contrary to the bedrock principle of American contract law that parties are free to contract as they see fit, and the courts are to enforce the agreement as written absent some highly unusual circumstance, such as a contract in violation of 4

5 law or public policy. 20 As opposed to the foundational limitation on the government s ability to restrict the freedom of contract, 21 the Court characterized the rule of reasonable expectations as being of recent origin, beginning with a 1970 article by then Professor Robert E. Keeton, 22 which spawned a frontal assault on the ability of our citizens to manage, by contract, their own affairs The Court recited what it termed Michigan s puzzling history with the doctrine of reasonable expectations, starting with Zurich Ins. Co. v. Rombough. 24 The doctrine is addressed positively in what the Wilkie Court termed as dicta. 25 Twelve years later the Court discussed the doctrine in Raska v. Farm Bureau Ins. Co. 26 The Raska Court strongly rejected the position that an unambiguous contract can be overcome by the reasonable expectations of the insured. [T]he expectation that a contract will be enforceable other than according to its terms surely may not be said to be reasonable. If a person signs a contract without reading all of it or without understanding it, under some circumstances that person can avoid its obligations on the theory that there was no contract at all for there was no meeting of the minds. But to allow such a person to bind another to an obligation not covered by the contract as written because the first person thought the other was bound to such an obligation is neither reasonable nor just. 27 Interestingly, in his dissent in Raska, the only Michigan authority Justice Williams uses in support of the doctrine of reasonable expectations is Rombough. 28 Four years after Raska, a plurality of the Court decided Powers v. DAIIE. 29 As the Wilkie Court observed, the Powers plurality cited Raska for the proposition that if an insured read a contract, their reasonable expectations would be enforced, which is interesting considering Raska s repudiation of the doctrine of reasonable expectations. 30 For the first time, the Powers plurality recognized that an ambiguity in the policy language was not required for the doctrine of reasonable expectations to apply. 31 Powers has been cited for the proposition that Michigan had 5

6 been using reasonable expectations language for the interpretation of insurance contracts. 32 However, it has been criticized as applying the doctrine, but not holding to the basis of the doctrine. 33 Five years later in Vanguard Ins. Co. v. Clark, 34 the Court agreed with the Powers plurality that the doctrine of reasonable expectations was an adjunct to the rules of contract interpretation, but did not follow the Powers Court s view that the doctrine did not need an ambiguity to be applicable. 35 That view was also rejected in Farm Bureau Mut. Ins. Co. v. Nikkel. 36 Thus, the Wilkie Court described Michigan s history with the doctrine of reasonable expectations as a confused jumble of ignored precedent, silently acquiesced to plurality opinions, and dicta, all of which, with little scrutiny, have been piled on each other to establish authority. 37 The Court took to clear up the status of the doctrine of reasonable expectations in Michigan. 38 The Court summarily rejected the notion that the doctrine would be applicable to unambiguous policy language, and applying it to ambiguous policy language would add nothing to the maxim contra preferentem. 39 In sum, the rule of reasonable expectations clearly has no application when interpreting an unambiguous contract because a policyholder cannot be said to have reasonably expected something different from the clear language of the contract. Further, it is already well established that ambiguous language should be construed against the drafter, i.e., the insurer. Therefore, stating that ambiguous language should be interpreted in favor of the policyholder s reasonable expectations adds nothing to the way in which Michigan courts construe contracts, and thus the rule of reasonable expectations should be abolished. 40 Justice Weaver concurred with the majority that the doctrine of reasonable expectations was not applicable when interpreting unambiguous policy language, but dissented on the basis 6

7 that she thought the policy language was ambiguous. 41 However, she did not say that the doctrine was not applicable in the case of ambiguous policy language. Even though she only used contra preferentem as the basis for her dissent, I believe she would still use the doctrine to interpret ambiguous policy language. 42 Justice Cavanagh in dissent argued that the doctrine of reasonable expectations is not limited to circumstances where the policy language is ambiguous on its face and can be used to make the ambiguity determination. 43 In the realm of contracts of adhesion, the court should look not only at the text of the contract, but also at the circumstances surrounding the transaction to determine the objectively reasonable expectations of the insured. 44 I would prefer not to disregard the manner in which the insurance industry operates. Though an adhesion contract may be a necessary ingredient in the trade, I cannot condone a doctrine of interpretation that all but ignores the potentially precarious effect on the bound party. 45 In looking at the policy language from the insured s perspective, Justice Cavanagh determined that it can be construed to mean that the term available applies to the amount of coverage available to the tortfeasor to pay each claim. Therefore, the calculation should be to subtract the $25,000 each plaintiff received from the $100,000 limit of underinsured motorist coverage to determine Auto-Owners obligation. Since this interpretation is objectively reasonable, the policy language is ambiguous and should be construed against the drafter. 46 Justice Kelly in dissent agreed with Justice Cavanagh s approval of the rule of reasonable expectations. She found that the simple dictionary definition of available could render the term ambiguous in a multiple claimant situation. 47 Since both plaintiffs and Auto- Owners interpretations are reasonable, the policy language is ambiguous and the language should be construed against the drafter. 48 7

8 III. Michigan Cases After Wilkie While Wilkie has been used as authority regarding Michigan s stance on the doctrine of reasonable expectations, 49 many of the citations are for reasons other than the doctrine. 50 One of the issues soon after Wilkie was decided was encountered in Michigan Mun. Risk Mgmt. Auth. v. Seaboard Surety Co. 51 The case involved an unambiguous absolute pollution exclusion in the policy covering a contractor who was hired by the City of Westland to separate the city s storm drain and sewage drain systems. 52 The company negligently installed a bulkhead, which caused basements of nearby homes to be flooded with sewage. 53 In a seemingly sympathetic statement, the court stated that although the flooding problem is perhaps a foreseeable situation when undertaking a sewer and paving project, the contract language, and specifically the exclusion language, are clear and unambiguous. 54 The court held, citing Wilkie, that despite the unambiguous language, the trial court used the rule of reasonable expectations, which is not applicable. 55 In Dahlke v. Home Owners Ins. Co. 56, the Court of Appeals seemed to reluctantly enforce unambiguous policy language. Dahlke involved a clear policy exclusion for damage caused by mold. 57 In reversing the trial court s decision, the court stated, that [w]e are not unmindful of the concerns expressed to us regarding the number and breadth of listed causes of loss that are excluded by Home Owners policy. Our interpretation of the exclusion would result in denial of coverage for damage to covered property that many insureds would ordinarily expect to be covered. 58 The court held, quoting Wilkie, that they had to apply unambiguous terms of the policy contract, and the insured s reasonable expectations of coverage were not applicable. 59 8

9 Unionville-Sebewaing Area Schools v. MASB-SEG Prop. Cas. Pool 60 found a defendant attempting to characterize the trial court s decision as a use of the doctrine of reasonable expectations. 61 The court rejected that argument stating that the trial court used principles of contract interpretation and found the policy sufficiently ambiguous to find against the defendant. The Court of Appeals agreed and upheld the trial court. 62 In Great American Ins. Co. v. Baird, 63 another defendant attempted to use Wilkie s repudiation of the doctrine of reasonable expectations to exclude coverage. Great American cited Wilkie for the proposition that their policy exclusion was unambiguous and that the insured s reasonable expectations could not be a foundation for a finding of coverage. 64 However, the court held that the language of the policy was unambiguous in its granting of coverage. Since Wilkie dictates that the plain language of the policy controls, the court found that the exclusion unambiguously did not preclude coverage in the facts of this case. 65 In another pollution exclusion case, the court in Watson v. Travelers Indem. Co. 66 rejected the plaintiff s attempt to apply the doctrine of reasonable expectations and stated that the exclusionary clause could easily have been discovered on examination of the policy. 67 This case seems to stand for the position that policyholders have an obligation to read their policies. If they do not, they will be held to unambiguous policy language as if they had. Farm Bureau General Ins. Co. v. Palmateer 68 dealt with whether the trial court correctly applied a contra preferentem analysis to a resident relative exclusion to the liability coverage in a Builders Risk policy. 69 The court found that the exclusion was unambiguous, reversed the trial court, and remanded the case to determine whether the exclusion applied to the facts of the case. 70 In a discussion regarding the appropriate circumstance to apply contra preferentem, the court parenthetically cited Wilkie for the proposition that the rule of reasonable 9

10 expectations is the same as the rule of construing against the drafter and its application is limited to ambiguous contracts. 71 This is an interesting and inaccurate description of the holding in Wilkie. Wilkie held that the rule of reasonable expectations was not applicable to unambiguous contracts, because the policyholder could not reasonably have expected something different from the clear language of the policy; and the rule added nothing to the interpretation of ambiguous language, since the policy would be construed against the drafter in favor of the policyholder. 72 Therefore, the rule had no application and should be abolished. 73 Other Michigan cases cite Wilkie correctly to say that the rule of reasonable expectations has no applicability; 74 a policyholder s reasonable expectations are immaterial; 75 courts may not rewrite contracts on the basis of discerned reasonable expectations of the parties; 76 and that a party s reasonable expectations cannot overcome the plain language of the contract. 77 An example of a gross misstatement of the holding in Wilkie is found in an argument made by the defendant in In re Tower Automotive, Inc. 78 Defendant had moved for reargument on the basis that the court, in its original order, had referenced the rule of reasonable expectations. The defendant unsuccessfully argued that the rule was a principle foundation for the Court s decision. 79 The court granted the motion, but only to the extent of deleting all reference to the rule of reasonable expectations, but otherwise confirmed the original opinion. 80 Quoting defendant s Reply in Support of Motion to Dismiss, the court stated, Federal itself quotes Wilkie for the proposition that the rule of reasonable expectations only applies when there is more than one way to reasonably interpret a contract. 81 IV. Keeton and the Academic Debate Over the Doctrine of Reasonable Expectations 10

11 It is well recognized that then Professor Keeton s famous article 82 was the beginning of the recognition of what Professor Keeton termed a principle of reasonable expectations. 83 Keeton started with the premise that, as opposed to contracts that are negotiated at arms length, insurance contracts are contracts of adhesion, and therefore the unequal bargaining power between the insurance company and the insured make judicial regulation appropriate. 84 He stated his now well known definition of the doctrine as follows: The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations. 85 The starting point is that policy language should be objectively viewed from the perspective of the layperson. 86 Even if the particular insured made a painstaking study of the contract, as long as his expectations were objectively reasonable from the layperson s point of view, those reasonable expectations would not be frustrated by contrary policy language. 87 Keeton identified an important corollary to this expectations principle: [I]nsurers ought not to be allowed to use qualifications and exceptions from coverage that are inconsistent with the reasonable expectations of a policyholder having an ordinary degree of familiarity with the type of coverage involved. This ought not to be allowed even though the insurer s form is very explicit and unambiguous, because insurers know that ordinarily policyholders will not in fact read their polices. 88 Timing of information seems to be important to Professor Keeton, because while he recognized that in most insurance transactions, the policyholder does not receive the detailed policy language until days or weeks after purchasing the insurance, insurers can make explicit coverage qualifications by notifying the policyholder of it at the time of contracting, thereby negating surprise to him. 89 Professor Keeton does not explain what painstaking, as opposed to cursory, examination of the policy would be. He also does not identify standards that courts can 11

12 use to identify what a reasonable policyholder would find as an unusual limitation of coverage requiring disclosure. Despite the title of his article, Professor Keeton admitted that the decisions that could be most easily explained by the principle were the decisions that involved ambiguities. 90 Theoretically, the doctrine may work to the detriment of the insured. If the expectation of coverage is not reasonable, even though the policy language is ambiguous, the policyholder s unreasonable expectations would not be honored. It seems likely, however, that, even though not often expressed, there has always been an implicit understanding that ambiguities, which in most cases might be resolved in more than just one or the other of two ways, 91 would be resolved favorably to the insured s claim only if a reasonable person in his position would have expected coverage. 92 Professor Keeton goes on to list examples of cases where the limits of ambiguity analysis are stretched, but do not explicitly go beyond it, 93 those that have seemed to press beyond the rationale of ambiguity, 94 and one in which the court invented an ambiguity and then construed the ambiguity against the insurer. 95 He also lists cases that were decided under other theories, but would be better explained as having honored the insured s reasonable expectations. 96 Professor Keeton saw these expectation principles overlapping somewhat with detrimental reliance; however reliance may be caused by representations of agents. Expectations in the cases cited supra were created by policy language and structure, marketing patterns by the insurer, and general practices. 97 While reliance principles would focus on the individual policyholder, expectations principles reflect those that are common. 98 In evaluating these cases, Professor Keeton does not decide whether they were rightly decided or whether an expectations analysis would produce the correct result. He only analyzes them under the equitable theories employed by the courts, determines that those equitable theories do not adequately describe how 12

13 the courts reached their decisions, and found a better basis for the decisions under the reasonable expectations of the policyholders. Professor Keeton next entertained the question of whether rights at variance that would otherwise be recognized under the expectations principle [were] defeated by a policyholder s specific knowledge of the policy provisions that limit protection in a surprising way. 99 Professor Keeton had stated earlier that insurer protection has limits if the provision is fundamentally unconscionable because it misleads the great majority of policyholders. 100 This combines honoring reasonable expectations with disallowing unconscionable advantage to the insurer. 101 Provisions that are subject to this analysis, because they are complex or otherwise unexpected, may not be effectively communicated to the general public by mass marketing; therefore, no amount of care in drafting and in marketing will avoid the creation of reasonable expectations contrary to the literal terms of policy provisions. 102 According to Professor Keeton it would be unduly harsh for these knowledgeable policyholders to receive less coverage for the same premium as less knowledgeable policyholders. 103 There has been much legal scholarship regarding the doctrine of reasonable expectations in the years following Professor Keeton s article. The doctrine has been described as exemplifying legal functionalism in insurance law in the ongoing debate with legal formalism. 104 Its proponents have termed it a stance insurance law should take in an ongoing and still continuing battle for the soul of contract law. 105 In the years after Professor Keeton s article, functionalist courts adopted the doctrine. 106 However, a number of states expressly rejected the doctrine, 107 and even by the early 1990 s legal functionalism was in a resurgence, while the reasonable expectations doctrine was experiencing a more limited judicial application than various commentators had initially predicted

14 For advocates of the doctrine, the focus is on the relationship of the parties. The tremendous imbalance in information, financial resources and litigation experience allow insurance companies to hold tremendous power and control over the development of case law, the outcome of insurance litigation, and the resources and recourses available to insurance policyholders. 109 The doctrine helps take the power away from the insurance companies to control policy drafting and insurance law. 110 Traditional approaches for protecting policyholders are not enough in the face of insurance adhesion contracts. Unconscionability requires egregious and unfair conduct by the insurer. Estoppel requires a representation that the policyholder relied on. Courts are not willing to apply implied warranty of fitness for intended use. 111 Traditional protections are too limited. They do not look at the relationship of the parties. They do not look at the transaction as a whole. Stephen J. Ware in his comment, A Critique Of The Reasonable Expectations Doctrine 112 presents many of the arguments that the critics of the doctrine express. Ware begins his analysis with a review of judicial remedies to adhesion contracts, of which contra preferentem is the most commonly used. 113 He notes that it has been transformed from a rule of last resort to a substantive tool used to systematically construe the insurance contract in the policyholder s favor. 114 Other doctrines in use include unconscionability, estoppel, waiver, implied warrantee of fitness, reformation and public policy. 115 Ware identifies three versions of the reasonable expectations doctrine as applied by various courts: Construing ambiguities in contract language to meet the reasonable expectations of the policyholder; 14

15 2. Refusing to enforce policy provisions in fine print that limit coverage granted in a part of the contract that is more prominent; and 3. Honoring the reasonable expectations of the policyholder, because those expectations arise from outside the contract and come from the insurer. 117 The ambiguity version of the doctrine is no different than contra preferentem. It just uses the insured s reasonable expectations as a reason for its particular construction. As Ware notes, The states using the ambiguity version of the reasonable expectations doctrine are not analyzing cases any differently from states that reject the doctrine; both sets of courts claim that contractual language is crucial to their decisions, and both fabricate ambiguities or read the policy as a layperson would in order to provide coverage unwarranted by a precise parsing of the policy. 118 Under the fine print version, unambiguous policy provisions will be overcome by the policyholder s reasonable expectations by reason of the structure of the contract itself. Terms that an insured would see in glancing at the policy are generally enforced, but those that are buried in many pages of fine print are likely to be disregarded. 119 This is more in line with Professor Keeton s description of the doctrine, because the court recognizes a policyholder s rights that are at variance with unambiguous, explicit policy language. It assumes that policyholders do not read their policies or if they do only at a cursory level. 120 Most often the offending provisions are exclusions of coverage. Ware argues that, as a result of courts hostility to policy exclusions, insurers may change the way they draft policies, to the detriment of insureds. 121 Instead of granting broad coverage and limiting portions of that coverage with specific exclusions, insurers could start with a baseline of no coverage and only grant coverage for specific situations. Arguably this would take away coverage for instances that are not 15

16 anticipated by either the insured or insurer, because they are not expressly mentioned in the policy. 122 The whole transaction version does not look at the contract language at all, but at the circumstances surrounding transaction, such as marketing and general practices of the insurer. 123 This is distinguished from equitable estoppel, because there is no detrimental reliance requirement with this reasonable expectations version. 124 This version is also within Professor Keeton s description, because unambiguous policy language can be disregarded. Ward, then, addresses what he identifies are the three main reasons proponents give for the doctrine of reasonable expectations: not receiving the policy until after entering into the contract, the inequality of bargaining power, and the complexity of the insurance contracts. Ware contends that a policyholder not receiving the policy until after agreeing to buy the insurance and paying the first premium does not justify the doctrine. The process of the transaction makes the proposed insured the offeror. When the offeree, the insurance company, accepts the offer, it delivers the policy contract. If the insurance company rejects the offer, the entire amount of any premium paid is refunded and the insured is in the same position he was in prior to the transaction. Likewise, the insured, after receiving the policy contract, can cancel and receive a full refund of premium or at least a pro rata amount based on the amount of time coverage was effective. 125 It is a common argument among expectations proponents that an influential reason for the doctrine is the unequal bargaining power between the insurance company and the potential insured. 126 However, both the insurer and the insured benefit economically from the use of standardized contracts. Because the insurer is freed from drafting individual contracts with each potential policyholder, its transaction costs are drastically minimized. Because those transaction 16

17 costs are minimized, the public is able to afford insurance coverage so that its risks are effectively transferred to the insurance company. The primary reason, therefore, of standardized insurance contracts are to reducing transaction costs and not to take advantage of unequal bargaining power. 127 The last justification is that the insurance contracts are long, complex and written by the insurer. This justification is based on the premise that insurers will only include terms in the insurance policies that are favorable to them. 128 Wade argues that this does not make sense from an economical and marketing standpoint. He quotes Judge Richard Posner for the position that if a seller offers unattractive terms, another seller will offer more attractive terms in order to gain market share. After acknowledging that this is an oversimplification in the insurance context, Ware discusses the various mechanisms of price/policy provision mix; easy to read policy summaries, overt comparisons by insurers with their competitors, fostering goodwill by ignoring certain policy provisions, and developing a good claims-adjusting reputation in order to distinguish themselves. 129 Ware finishes this section by proposing that governmental, both administrative and judicial, interference is part of the problem of why and how insurance contracts became long and complex. As courts construe policy language, insurance contract drafters attempt to isolate the legal words and phrases used in order to clarify the policy language according to the court ruling. The drafters attempts result in longer and more complex policies. 130 Ware contends that courts could help clarify policy language by intervening less, not more. The use of the reasonable expectations doctrine causes drafters to make policies more complicated in order to attempt to clarify the policy language under the court ruling

18 Ware ends with an analysis of freedom of contract, which is a favorite point among critics of the doctrine of reasonable expectations. 132 Ware contends that even if bargaining power or contract terms did favor the insurer, one would still have to reject freedom of contract and weaken the rule of law in order to justify the reasonable expectations doctrine. 133 The basis of freedom of contract is the notion that contractual duties are not imposed on a party by force or coercion. Both the insurer, by obtaining licensure from the state and soliciting customers, and the proposed insured, by seeking to purchase insurance, enter into a contractual relationship with its obligations and duties. The logical conclusion is their rights and duties are determined by the language of the written contract. 134 However, the doctrine of reasonable expectations imposes on the insurer additional duties not found in the contract. Advocates of the doctrine contend that this is appropriate, because the policyholder has not truly consented to the duties in the contract. 135 On the other hand, ascribing to the traditional rule that one who signs a contract assents to its terms promotes equality, freedom, and wealth. 136 By viewing the policyholder s signature as an assent to the contract terms, the interpretation of the contract is made clear and objective, and the law is applied equally and not on the whim of a judge or jury. 137 Freedom is served by objective and clear rules so that [m]an is free if he needs to obey no person but solely the laws. 138 Finally, wealth is promoted because economic actors have confidence that they can predict how a state will act with its coercive powers. 139 Nothing in freedom of contract states that each term must be bargained and negotiated. Freedom of contract allows parties to enter into form contracts as long as they are not defrauded or forced. 18

19 VI. Jurisdictional Differences This paper will not attempt to inventory every jurisdiction and attempt to classify it. Many of the articles cited herein provide such lists as they stood at various times. However, a review California in some detail with more cursory reviews of New Jersey, Florida, Pennsylvania, Utah, and Wisconsin is appropriate to show how the doctrine is treated differently around the country. A. California One of the foundational cases that Professor Keeton relied on to show the reasonable expectations principle was Steven v. Fidelity & Cas. Co. 140 In this famous case of the vending machine airline insurance, the California Supreme Court stated In this type of standardized contract, sold by a vending machine, the insured may reasonably expect coverage for the whole trip which he inserted in the policy, including reasonable substituted transportation necessitated by emergency. 141 It was charged by the Court that ambiguity in the language is determined in view of the policyholders knowledge and understanding as a reasonable layman, his normal expectation of the extent of coverage of the policy One of the most influential cases in the development of the reasonable expectations doctrine is Gray v. Zurich Ins. Co. 143 Gray involved the insurance company denying a defense to Mr. Gray for a third-party suit. Writing for the Court, Justice Tobriner stated that the meaning of the contract comes from the reasonable expectations of the insured as opposed to the words used in the insurance contract. 19

20 Although courts have long followed the basic precept that they would look to the words of the contract to find the meaning which the parties expected from them, they have also applied the doctrine of the adhesion contract to insurance policies, holding that in view of the disparate bargaining status of the parties we must ascertain that meaning of the contract which the insured would reasonably expect. 144 It appears at the time of Professor Keeton s article, California already had a fairly well developed doctrine in which the insured s reasonable expectation could prevail over policy language that was unambiguous on its face. In 1992, the California Supreme Court decided Bank of the West v. Superior Court. 145 The case involved construing the terms unfair competition and advertising injury. 146 While admitting that insurance contracts have special features, ordinary contract interpretation rules apply. 147 If the contract language is clear, it governs; however, [i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it. 148 There are two significant developments in this statement of insurance contract interpretation. First, the Court seems to say that any reasonable expectations analysis is inapplicable without first there being an ambiguity in the contract language. This would back away from the Gray Court s strong statement in favor of reasonable expectations. This is also not in keeping with Professor Keeton s presentment of not needing an ambiguity to apply the doctrine. Secondly, when the doctrine is applied, it is viewed from the insurer s perspective. The question is not what the insured reasonably expected coverage to be, but what the insurer believed the insured expected. This is a significant shift, and is similar to the standard in the Restatement (Second) of Contracts 211 relating to Standardized Agreements. 149 California s analytical frame-work for interpreting insurance contracts now had a threestep sequential process that used reasonable expectations as only a part, not the overriding 20

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